Unofficial Opinion 2002-5

March 27, 2002

To:

Representative, District 25

Re:

The distance provisions of O.C.G.A. § 3-3-21(a)(1)(A) with regard to the location of church buildings require that the building containing the premises licensed for the sale of distilled spirits must be located no less than one hundred yards from any church building.

This responds to your request for an opinion regarding the measurement of distances under O.C.G.A. § 3-3-21.

Pursuant to O.C.G.A. § 3-3-21(a)(1):

No person knowingly and intentionally may sell or offer to sell:

(A) Any distilled spirits in or within 100 yards of any church building or within 200 yards of any school building, educational building, school grounds, or college campus . . . .

(Emphasis added.)1 O.C.G.A. § 3-3-21(c) provides that “[f]or purposes of this Code section, distances shall be measured by the most direct route of travel on the ground.”2,3 In the area of alcoholic beverages, the State Revenue Commissioner has the authority to enact reasonable rules and regulations. O.C.G.A. § 3-2-2. Regulation 560-2-2-.32 of the State Revenue Commissioner provides as follows:

(1) Unless otherwise provided by law, all measurements, to determine distances, required by the Georgia Alcoholic Beverage Code, for the issuance of state beverage alcohol licenses, shall be measured by the most direct route of travel on the ground and shall be measured in the following manner:

(a) from the front door of the structure from which beverage alcohol is sold or offered for sale; (b) in a straight line to the nearest public sidewalk, walkway, street, road or highway; (c) along such public sidewalk, walkway, street, road or highway by the nearest route; (d) to the front door of the building, or to the nearest portion of the grounds, whichever is applicable under the appropriate statute.

(Emphasis added.) The use of the terms “building” and “grounds” in subsection (d) of Revenue Regulation 560-2-2-.32 seems to express a distinction in the measurement of distances. The term “church building” appears more narrow than the terms “school building, educational building, school grounds, or college campus” in O.C.G.A. § 3-3-21(a)(1)(A).

In Davidson v. Lovett, the Georgia Supreme Court interpreted the phrase “school or schoolhouse” to encompass all of the instructional premises of schools, not just the actual school buildings. 242 Ga. 375, 376 (1978). In analyzing the language of former Ga. Code Ann. § 58-724 which prohibited the sale of alcoholic beverages “upon any church, school ground or college campus or within 100 yards of such ground or campus,” a previous unofficial opinion of this office concluded that the quoted language “covers not only any church or school but the campus or grounds surrounding the church or school which constitutes a part of the church or school properties.” 1954-56 Op. Att’y Gen. 461. Former Ga. Code Ann. § 58-724 provided in relevant part that “[n]o alcoholic beverage of any kind shall be sold upon any church, school ground or college campus or within 100 yards of such ground or campus.” When Ga. Code Ann. § 5A-508 was enacted in 1980, the prohibition referred to sales of “[a]ny distilled spirits upon the grounds of or within 200 yards of any church building, school building, or educational building on a college campus.” 1980 Ga. Laws 1595 (emphasis added). In 1981, the prohibition in former Ga. Code Ann. § 5A-508 was changed to refer to sales of “[a]ny distilled spirits in or within 100 yards of any church building, or within 200 yards of any school building or educational building or school grounds or college campus.” 1981 Ga. Laws 1279 (emphasis added). This is essentially the same language that now appears in O.C.G.A. § 3-3-21(a)(1)(A).

With regard to sales near churches, the present language of O.C.G.A. § 3-3-21(a)(1)(A) prohibits sales of distilled spirits within certain distances of any “church building.” The use of the term “church building” in O.C.G.A § 3-3-21(a)(1)(A) seems to reflect a narrower meaning than the use of the terms “school building, educational building, school grounds, or college campus” when referring to schools. The use of the term “church building” also appears narrower than prior statutes discussed herein that used only the term “church” or referred to the “grounds” of churches.

Based on the foregoing, it is my unofficial opinion that the distance provisions of O.C.G.A. § 3-3-21(a)(1)(A) with regard to the location of church buildings require that the building containing the premises licensed for the sale of distilled spirits must be located no less than one hundred yards from any church building.

Prepared by:

W. Wright Banks, Jr.
Assistant Attorney General

1 The distance restrictions of O.C.G.A. § 3-3-21(a) do not apply to certain hotels, bona fide private clubs, and locations licensed for consumption on the premises which are subject to local regulation.

2 The restrictions set forth in O.C.G.A. § 3-3-21 only establish minimum distances. With regard to schools, the Georgia Supreme Court has held that the distance restrictions do not prohibit a local governing authority from enacting greater distance restrictions. Powell v. Board of Comm’rs, 234 Ga. 183, 185 (1975).